Defendant was charged with intentional murder with a firearm, ORS
163.115(1)(a), (1) after killing her domestic associate, Donald Hayes. According to
defendant, Hayes beat her and threatened her with a gun that discharged during a physical
struggle resulting in his death. In a pretrial motion, defendant unsuccessfully challenged
the constitutionality of Measure 40 and the provision of Senate Bill 936 that authorized
the state to demand a jury trial. ORS 136.001. (2) She then waived her right to a jury trial
and requested a trial before the court. The state objected to the waiver, relying on
Measure 40 and ORS 136.001. The trial court ruled that the state had the right to demand
a jury trial. However, because of the trial court's concern that the validity of Measure 40
and ORS 136.001 was "unsettled law," it also ruled that it would reach an independent
verdict, which it would seal, to prevent the necessity of a retrial in the event that the
appellate courts declared that Measure 40 and ORS 136.001 were unconstitutional.

The state appeals, challenging the trial court's refusal to impose the 120-month mandatory minimum sentence. Defendant cross-appeals, arguing that the trial
court should have refused the state's demand for a jury trial and that it should have
excluded evidence of the prior episode in which she discharged a weapon. After the
parties submitted written briefs to this court, we decided State v. Maddox, 165 Or App
573, 997 P2d 276 (2000). In Maddox, we followed the Oregon Supreme Court's holding
in State v. Baker, 328 Or 355, 976 P2d 1132 (1999), that the state's right to demand a jury
trial under ORS 136.001 "infringed on a defendant's right to waive a jury, as provided in
Article I, section 11[, of the Oregon Constitution]." Maddox, 165 Or App at 575. We
rejected the state's argument that the trial court's error in compelling the defendant to
waive her constitutional right to request a court trial was harmless and concluded that the
error was "inherently prejudicial," thus requiring a new trial. Id. at 577.

The state concedes that under Maddox and Baker, the trial court erred in
requiring defendant to submit to a jury trial and argues that the proper remedy, as in
Maddox, is reversal of defendant's conviction and a remand for a new trial. Defendant
agrees that remand is proper but argues that we must instruct the trial court on remand to
vacate her conviction and enter its previously reached verdict of not guilty. Defendant
contends that it would be improper to disregard the trial court's verdict when she and the
state agreed in advance to the procedure; she asserts that "[i]n essence, the trial court held
two trials at once." The state responds that the prosecutor never expressed an intention to
be bound by the trial court verdict in the event the jury verdict was invalidated.

On review of the trial court record, we conclude that the prosecutor did
agree to the procedure proposed by the court. Before the trial began, the trial court stated
to the parties that,

"[u]nder the circumstances of this case it will be this Court's intention after
the jury has left for deliberations to make a finding as to what this Court
would have found had this been a Court trial. The purpose of that is so that
it is not re-tried on this issue alone * * *."

The state did not object. After the jury rendered its guilty verdict, the following colloquy
occurred between the court and counsel:

"THE COURT: The other thing that I should state for the record, I
indicated when this Court ruled on whether or not the State had a right to a
jury trial in this matter, in which the Court concluded that the State did in
fact have a right to require a jury trial, as I expressed then, this is unsettled
law in the State of Oregon and that it was my understanding after the jury
left, to render a factual determination as if I were the trier of fact so that
would be made part of the record.

"In conversations in chambers, I indicated that it would be my
suggestion that I do that in written form and then seal that decision until
such time as it might become relevant on appeal.

"There was an assent to that suggestion by both parties in chambers.
I assume that remains the case. Is that correct?

"[DEFENSE COUNSEL]: Yes, Your Honor.

"[PROSECUTOR]: Correct, Your Honor.

"THE COURT: And I'll then render my own written opinion and seal
that document for the court file to be opened only by the Appellate Court,
should they find it to be relevant."

In previous cases in which the parties have agreed to a trial court procedure that is
somewhat out of the ordinary, we have held them to be bound by their stipulation. For
example, in Viking Exploration, Inc. v. Trefethen, 108 Or App 530, 532, 816 P2d 680
(1991), the parties' dispute was originally heard before a referee pursuant to ORCP 65.
When the case reached the trial court, the parties stipulated to a trial by the court, rather
than, as would normally be done, having the court accept the referee's factual findings.
Id. The plaintiff assigned error; we held that because "plaintiff made no objection when
the court indicated what procedure it would follow and how it interpreted the
stipulation[,]" the claim of error was meritless. Id.; see also Jaeger and Jaeger, 224 Or
281, 287-88, 356 P2d 93 (1960) (where appellant had made an informed agreement to
procedure by which trial judge interviewed witnesses outside her presence, she is bound
by that decision). The state points to no principle of law, and we have found none,
suggesting either that the trial court lacked the power to render its own verdict under the
unusual circumstances present in this case or that we cannot order that the verdict be
entered on remand. At oral argument, the state disputed that the prosecutor had stipulated
to the alternate-verdict procedure but conceded that if he had done so, the state would be
bound by its agreement.

The state nonetheless argues that our

"rejection [in Maddox] of the state's harmless-error argument necessarily
rests on an unstated assumption that a defendant may be able to obtain a
different result based on the same facts by having the case tried to a judge
rather than to a jury. If that is so, then it becomes of critical importance to
the validity of a verdict that the parties knew during the trial who the fact-finder ultimately would be."

"(1) The defendant and the state in all criminal prosecutions have the
right to public trial by an impartial jury.

"(2) Both the defendant and the state may elect to waive trial by jury
and consent to a trial by the judge of the court alone, provided that the
election of the defendant is in writing and with the consent of the trial
judge."